I.

Power of Inquiry
Senate v. Ermita 488 SCRA 1 [2006] (E.O. 464)
FACTS
In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and employees of the executive
department, bureaus, and offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate called for the
attendance of various officials of the Executive Department for them to attend a
public hearing on the railway project of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group (hereinafter North Rail Project). In
order to help in investigating an alleged overpricing and other unlawful provisions of
the contract covered in the said project.
Likewise the Senate also issued invitations through the Senate Committee on
National Defense and Security for some officials of the Armed Forces of the
Philippines to be resource speakers, in aid of legislation, inquiring on the
Gloriagate Scandal and the alleged wire tapping of the President of the
Philippines (referring to garci tapes)
Gen. Sanga sent a letter in Sept 27 to postpone the said hearing due to some
pressing needs he needs to attend and likewise Executive secretary Ermita requested
the same for he believes he needs time to review the issues in the meeting. ON
SEPTEMBER 28, 2005, PRESIDENT ISSUED EO 464 Ensuring Observance of
the Principles of Separation fo Powers, Adherance to the Rules on Executive
Privilege and Respect for the Rights of public officials appearing in legislative
inquiries in Aid of legislation under the constitution and for other purposes
HELD
To determine the constitutionality of E.O. 464, the Supreme Court discussed the two
different functions of the Legislature: The power to conduct inquiries in aid of
legislation and the power to conduct inquiry during question hour.
Question Hour:
The power to conduct inquiry during question hours is recognized in Article 6, Section
22 of the 1987 Constitution, which reads:
The heads of departments may, upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall

M.B. Fellone

provide, appear before and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of the Senate or
the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but
may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be
conducted in executive session.
The objective of conducting a question hour is to obtain information in pursuit of
Congress oversight function. When Congress merely seeks to be informed on how
department heads are implementing the statutes which it had issued, the department
heads appearance is merely requested.
The Supreme Court construed Section 1 of E.O. 464 as those in relation to the
appearance of department heads during question hour as it explicitly referred to
Section 22, Article 6 of the 1987 Constitution.
In aid of Legislation:
The Legislatures power to conduct inquiry in aid of legislation is expressly recognized
in Article 6, section21 of the 1987 Constitution, which reads:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in, or affected by, such inquiries shall be
respected.
The power of inquiry in aid of legislation is inherent in the power to legislate. A
legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change. And
where the legislative body does not itself possess the requisite information, recourse
must be had to others who do possess it.
But even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
executive privilege. This is the power of the government to withhold information from
the public, the courts, and the Congress. This is recognized only to certain types of
information of a sensitive character. When Congress exercise its power of inquiry, the
only way for department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department heads. Only
one official may be exempted from this power -- the President.
Section 2 & 3 of E.O. 464 requires that all the public officials enumerated in Section
2(b) should secure the consent of the President prior to appearing before either
house of Congress. The enumeration is broad. In view thereof, whenever an official
invokes E.O.464 to justify the failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is
privileged.

The letter sent by the Executive Secretary to Senator Drilon does not explicitly invoke
executive privilege or that the matter on which these officials are being requested to
be resource persons falls under the recognized grounds of the privilege to justify their
absence. Nor does it expressly state that in view of the lack of consent from the
President under E.O. 464, they cannot attend the hearing. The letter assumes that the
invited official possesses information that is covered by the executive privilege.
Certainly, Congress has the right to know why the executive considers the requested
information privileged. It does not suffice to merely declare that the President, or an
authorized head of office, has determined that it is so.
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus
invalid per se. It is not asserted. It is merely implied. Instead of providing precise and
certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent.
When an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the possible need for
invoking the privilege. This is necessary to provide the President or the Executive
Secretary with fair opportunity to consider whether the matter indeed calls for a claim
of executive privilege. If, after the lapse of that reasonable time, neither the President
nor the Executive Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and may then opt to avail
of the necessary legal means to compel his appearance.

The requirement then to secure presidential consent under Section 1, limited as it is

only to appearances in the question hour, is valid on its face. For under Section 22,
Article VI of the Constitution, the appearance of department heads in the question
hour is discretionary on their part.
When an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the possible need for
invoking the privilege.
Gudani v. Senga 498 SCRA 671 [2006] (in relation to Senate v. Ermita)
FACTS:
The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004
election fraud and the surfacing of the Hello Garci tapes. PGMA issued EO 464
enjoining officials of the executive department including the military establishment
from appearing in any legislative inquiry without her consent. AFP Chief of Staff Gen.
Senga issued a Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from
appearing before the Senate Committee without Presidential approval. However, the
two appeared before the Senate in spite the fact that a directive has been given to
them. As a result, the two were relieved of their assignments for allegedly violating the
Articles of War and the time honoured principle of the Chain of Command. Gen.
Senga ordered them to be subjected before the General Court Martial proceedings for
willfuly violating an order of a superior officer.
ISSUE:

Wherefore, the petitions are partly granted. Sections 2(b) and 3 of E.O. 464 are
declared void. Section 1(a) are however valid.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to
the power of inquiry, which exemptions fall under the rubric of "executive privilege
When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by
the mere fact that they are department heads. Only one executive official may be
exempted from this power the President on whom executive power is vested,
hence, beyond the reach of Congress except through the power of impeachment. It is
based on her being the highest official of the executive branch, and the due respect
accorded to a co-equal branch of government which is sanctioned by a long-standing
custom.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation, must
be construed as limited in its application to appearances of department heads in the
question hour contemplated in Sec 22, but could not be applied to appearances of
department heads in inquiries in aid of legislation. The requirement to secure
presidential consent under Sec 1, limited as it is only to appearances in the question
hour, is valid on its face

M.B. Fellone

Whether or not the President has the authority to issue an order to the
members of the AFP preventing them from testifying before a legislative
inquiry.
RULING:
Yes. The SC hold that President has constitutional authority to do so, by virtue of her
power as commander-in-chief, and that as a consequence a military officer who
defies such injunction is liable under military justice. At the same time, any chamber
of Congress which seeks the appearance before it of a military officer against the
consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be
compelled to do so by the President. If the President is not so inclined, the President
may be commanded by judicial order to compel the attendance of the military officer.
Final judicial orders have the force of the law of the land which the President has the
duty to faithfully execute.
SC ruled in Senate v. Ermita that the President may not issue a blanket requirement
of prior consent on executive officials summoned by the legislature to attend a
congressional hearing. In doing so, the Court recognized the considerable limitations
on executive privilege, and affirmed that the privilege must be formally invoked on
specified grounds. However, the ability of the President to prevent military officers
from testifying before Congress does not turn on executive privilege, but on the
Chief Executives power as commander-in-chief to control the actions and speech of

members of the armed forces. The Presidents prerogatives as commander-in-chief

are not hampered by the same limitations as in executive privilege.
At the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution itself
recognizes as one of the legislatures functions is the conduct of inquiries in aid of
legislation. Inasmuch as it is ill-advised for Congress to interfere with the Presidents
power as commander-in-chief, it is similarly detrimental for the President to unduly
interfere with Congresss right to conduct legislative inquiries. The impasse did not
come to pass in this petition, since petitioners testified anyway despite the
presidential prohibition. Yet the Court is aware that with its pronouncement today
that the President has the right to require prior consent from members of the armed
forces, the clash may soon loom or actualize.
The duty falls on the shoulders of the President, as commander-in-chief, to authorize
the appearance of the military officers before Congress. Even if the President has
earlier disagreed with the notion of officers appearing before the legislature to
testify, the Chief Executive is nonetheless obliged to comply with the final orders of
the courts.
II. Nature and essence
*Neg. O. II Elec. Coop. v. Sangguniang Panlungsod 155 SCRA 421 [1991] (nature
and essence)
FACTS
In 1985, the Sangguniang Panlungsod (SP) of Dumaguete sought to conduct an
investigation in connection with pending legislation related to the operations of public
utilities. Invited in the hearing were the heads of NORECO II (Negros Oriental II
Electric Cooperative, Inc.) Paterio Torres and Arturo Umbac. NORECO II is alleged
to have installed inefficient power lines in the said city.
Torres and Umbac refused to appear before the SP and they alleged that the power
to investigate, and to order the improvement of, alleged inefficient power lines to
conform to standards is lodged exclusively with the National Electrification
Administration (NEA); and neither the Charter of the City of Dumaguete nor the [old]
Local Government Code (Batas Pambansa Blg. 337) grants the SP such power. The
SP averred that inherent in the legislative functions performed by the respondent SP
is the power to conduct investigations in aid of legislation and with it, the power to
punish for contempt in inquiries on matters within its jurisdiction.

legislative body as a means of preserving its authority and dignity in the same way that
courts wield an inherent power to enforce their authority, preserve their integrity,
maintain their dignitiy, and ensure the effectiveness of the administration of justice
In the case of Arnault v Nazareno when the witness called by the Congress refused to
reveal the person he gave the 440k of money in question. The senate then filed a
contempt case against him. The court upheld the said power of senate and said:
.. (T)he power of inquiry-with process to enforce it-is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change; and where the legislative body does
not itself possess the requisite information which is not infrequently true
recourse must be had to others who possess it. Experience has shown that mere
requests for such information are often unavailing, and also that information
which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.
The power to punish recalcitrant witnesses must be considered implied or incidental to
the exercise of legislative power. The lack of power to punish its witnesses is also in line
with the Constitutions demand for its branches of government to hold full and complete
power. How could the authority and power become complete if for every act of refusal
every act of defiance, every act of contumacy against it, the legislative body must resort
to the judicial department for the appropriate remedy, because it is impotent by itself to
punish or deal therewith
However, the same cannot be said to local legislative bodies. To begin with, there is no
express provision either in the 1973 constitution or in the Local Government Code
granting local legislative bodies, the power of subpoena witnesses and the power to
punish non-members for contempt. Additionally, the power to issue a subpoena is
judicial in character. To allow local legislative bodies or admin agencies to exercise
these powers without express staturoy basis would run afoul of the doctrine of
separation of powers.

ISSUE: Whether or not LGUs can issue contempt.

HELD
NO
The Sangguniang Panlungsod of Dumaguete possess delated legislative power. So that
is why in the same way, they are treated similar to Congress. Thus in this case,
although the Constitution does not expressly vest Congres with the power to punish
non-members for legislative contempt, the power ahs nevertheless been invoked by the

M.B. Fellone

III. Requisites
A. In aid of legislation
Standard v. Senate 541 SCRA 456 [2007] (to prevent future fraudulent activities)

FACTS
SCB Phil Branch had criminal and civil charges against them before the courts in
Metro Manila for selling unregistered foreign securities in violation of Securities
Regulation Code (RA 8799). Enrile, in his privileged speech, urged the Senate to
immediately conduct an inquiry in aid of legislation, to prevent the occurrences of a
similar fraudulent in the future. The respondent Committee then set an initial hearing
to investigate, in aid of legislation thereto. SCB stressed that there were cases
allegedly involving the same issues subject of legislative inquiry, thus posting a
challenge to the jurisdiction of respondent Committee to continue with the inquiry.
ISSUE:
Whether or not the respondent Committee, by aid of legislation, would encroach upon
the judicial powers vested solely in the courts who took cognizance of the foregoing
cases.
RULING:
Yes. The unmistakable objective of the investigation, as set forth in the resolution, as
initiated in the privileged speech of Senate President Enrile, was simply "to denounce
the illegal practices committed by a foreign bank in selling unregistered foreign
securities xxx", and at the conclusion of the said speech "to immediately conduct an
inquiry, in aid of legislation, so as to prevent the occurrence of a similar fraudulent in
the future."
The mere filing of a criminal or administrative complaint before a court or a quasijudicial body should not automatically bar the conduct of legislation. The exercise of
sovereign legislative authority, of which the power of legislative inquiry is an essential
component, cannot be made subordinate to a criminal or an administrative
investigation.
The intent of legislative inquiries is to arrive at a policy determination, which may or
may not be enacted into law. Except only when it exercises the power to punish for
contempt, the committees of the Senate or the House of Representatives cannot
penalize violators even there is overwhelmingly evidence of criminal culpability. Other
than proposing or initiating amendatory or remedial legislation, respondent Committee
can only recommend measures to address or remedy whatever irregularities may be
unearthed during the investigation, although it may include in its Report a
recommendation for criminal indictment of persons who may appear liable. At best,
the recommendation, along with the evidence, contained in such Report would only
be persuasive, but it is still up to the prosecutorial agencies and the courts to
determine the liabilities of the offende

B. In accordance with duly published rules of procedure

Garcillano v. House GR 170338, December 23, 2008 (publication of rules on
inquiry)
Facts:
Tapes ostensibly containing a wiretapped conversation purportedly between the
President of the Philippines and a high-ranking official of the Commission on
Elections (COMELEC) surfaced. The tapes, notoriously referred to as the "Hello
Garci" tapes, allegedly contained the Presidents instructions to COMELEC
Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004
presidential elections. These recordings were to become the subject of heated
legislative hearings conducted separately by committees of both Houses of Congress.
Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights
therein through the publication of the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation, but also of the intended legislation which underpins the
investigation. He further intervenes as a taxpayer bewailing the useless and wasteful
expenditure of public funds involved in the conduct of the questioned hearings.
The respondents in G.R. No. 179275 admit in their pleadings and even on oral
argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
had been published in newspapers of general circulation only in 1995 and in 2006.
With respect to the present Senate of the 14th Congress, however, of which the term
of half of its members commenced on June 30, 2007, no effort was undertaken for the
publication of these rules when they first opened their session.
Respondents justify their non-observance of the constitutionally mandated publication
by arguing that the rules have never been amended since 1995 and, despite that,
they are published in booklet form available to anyone for free, and accessible to the
public at the Senates internet web page.
Issue:
Whether or not publication of the Rules of Procedures Governing Inquiries in Aid of
Legislation through the Senates website, satisfies the due process requirement of
law.
Held:

De la Paz v. Senate 579 SCRA 521 [2009] (Euro generals)

Romero v. Estrada 583 SCRA 396 [2009] (sub judice rule)

M.B. Fellone

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet
form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which
requires publication either in the Official Gazette or in a newspaper of general
circulation. The Rules of Procedure even provide that the rules "shall take effect
seven (7) days after publication in two (2) newspapers of general circulation,"

precluding any other form of publication. Publication in accordance with Taada is

mandatory to comply with the due process requirement because the Rules of
Procedure put a persons liberty at risk. A person who violates the Rules of Procedure
could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, otherwise
known as the Electronic Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect. R.A. 8792 considers an
electronic data message or an electronic document as the functional equivalent of a
written document only for evidentiary purposes. In other words, the law merely
recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents. It does not make the internet a medium for
publishing laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry subject
of these consolidated cases. The conduct of inquiries in aid of legislation by the
Senate has to be deferred until it shall have caused the publication of the rules,
because it can do so only "in accordance with its duly published rules of procedure

Committees and requested them to dispense with petitioners testimony on the

ground of executive privilege.
The senate thereafter issued a show cause order, unsatisfied with the reply, therefore,
issued an Order citing Neri in contempt and ordering his arrest and detention at the
Office of the Senate Sergeant-at-Arms until such time that he would appear and give
his testimony.
On the same date, petitioner moved for the reconsideration of the above Order.
Denied. Petition for certiorari and Supplemental Petition for Certiorari (with Urgent
Application for TRO/Preliminary Injunction) granted by the SC court.
CORE ISSUE:
(1) whether or not there is a recognized presumptive presidential communications
privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the communications
elicited by the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications
elicited by the three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in
issuing the contempt order.
HELD:

C. Respect for the rights of persons appearing in or affected by such inquiries

I
There Is a Recognized Presumptive
Presidential Communications Privilege

Neri v. Senate 564 SCRA 152 [2008] (executive privilege)

FACTS: In these proceedings, this Court has been called upon to exercise its power
of review and arbitrate a hotly, even acrimoniously, debated dispute between the
Courts co-equal branches of government. On September 26, 2007, petitioner
appeared before respondent Committees and testified for about eleven (11) hours on
matters concerning the National Broadband Project (the NBN Project), a project
awarded by the Department of Transportation and Communications (DOTC) to
Zhong Xing Telecommunications Equipment (ZTE). Petitioner disclosed that then
Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200
Million in exchange for his approval of the NBN Project. He further narrated that he
informed President Gloria Macapagal Arroyo (President Arroyo) of the bribery
attempt and that she instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioners discussions relating to the NBN Project,
petitioner refused to answer, invoking executive privilege. To be specific, petitioner
refused to answer questions on: (a) whether or not President Arroyo followed up the
NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or
not she directed him to approve it.
Respondent Committees persisted in knowing petitioners answers to these three
questions by requiring him to appear and testify once more on November 20, 2007.
On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent

M.B. Fellone

Respondent Committees argue as if this were the first time the presumption in favor
of the presidential communications privilege is mentioned and adopted in our legal
system. That is far from the truth. There, the Court enumerated the cases in which the
claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez
v. Presidential Commission on Good Government (PCGG),14 and Chavez v. PEA.15
The Court articulated in these cases that, the right to information does not extend to
matters recognized as privileged information under the separation of powers, by
which the Court meant Presidential conversations, correspondences, and discussions
in closed-door Cabinet meetings.
In this case, it was the President herself, through Executive Secretary Ermita, who
invoked executive privilege on a specific matter involving an executive agreement
between the Philippines and China, which was the subject of the three (3) questions
propounded to petitioner Neri in the course of the Senate Committees investigation.
Thus, the factual setting of this case markedly differs from that passed upon in Senate
v. Ermita.
A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The privilege is fundamental

to the operation of government and inextricably rooted in the separation of powers

under the Constitution x x x
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
A. The power to enter into an executive agreement is a quintessential and nondelegable presidential power.
First, respondent Committees contend that the power to secure a foreign loan does
not relate to a quintessential and non-delegable presidential power, because the
Constitution does not vest it in the President alone, but also in the Monetary Board
which is required to give its prior concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make
such power less executive. The power to enter into an executive agreement is in
essence an executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence. Now, the fact that the President has to secure
the prior concurrence of the Monetary Board, which shall submit to Congress a
complete report of its decision before contracting or guaranteeing foreign loans, does
not diminish the executive nature of the power. In the same way that certain
legislative acts require action from the President for their validity does not render such
acts less legislative in nature.
B. The doctrine of operational proximity was laid down precisely to limit the scope of
the presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the
doctrine of operational proximity for the reason that it maybe misconstrued to
expand the scope of the presidential communications privilege to communications
between those who are operationally proximate to the President but who may have
no direct communications with her.
It must be stressed that the doctrine of operational proximity was laid down in In re:
Sealed Case27precisely to limit the scope of the presidential communications
privilege. In the case at bar, the danger of expanding the privilege to a large swath of
the executive branch (a fear apparently entertained by respondents) is absent
because the official involved here is a member of the Cabinet, thus, properly within
the term advisor of the President; in fact, her alter ego and a member of her official
family.
C. The Presidents claim of executive privilege is not merely based on a generalized
interest; and in balancing respondent Committees and the Presidents clashing
interests, the Court did not disregard the 1987 Constitutional provisions on
government transparency, accountability and disclosure of information.
The Letter dated November 15, 2007 of Executive Secretary Ermita specified
presidential communications privilege in relation to diplomatic and economic relations

M.B. Fellone

with another sovereign nation as the bases for the claim. Even in Senate v. Ermita, it
was held that Congress must not require the Executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a coordinate and co-equal
department.
Privileged character of diplomatic negotiations
In PMPF v. Manglapus, . The Resolution went on to state, thus:The nature of
diplomacy requires centralization of authority and expedition of decision which are
inherent in executive action. Another essential characteristic of diplomacy is its
confidential nature.
With respect to respondent Committees invocation of constitutional prescriptions
regarding the right of the people to information and public accountability and
transparency, the Court finds nothing in these arguments to support respondent
Committees case.
There is no debate as to the importance of the constitutional right of the people to
information and the constitutional policies on public accountability and transparency.
These are the twin postulates vital to the effective functioning of a democratic
government. In the case at bar, this Court, in upholding executive privilege with
respect to three (3) specific questions, did not in any way curb the publics right to
information or diminish the importance of public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in
aid of legislation. There is nothing in the assailed Decision that prohibits respondent
Committees from inquiring into the NBN Project. They could continue the investigation
and even call petitioner Neri to testify again.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
The jurisprudential test laid down by this Court in past decisions on executive
privilege is that the presumption of privilege can only be overturned by a showing of
compelling needfor disclosure of the information covered by executive privilege.
In the Motion for Reconsideration, respondent Committees argue that the information
elicited by the three (3) questions are necessary in the discharge of their legislative
functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to
curb graft and corruption.
We remain unpersuaded by respondents assertions.
The burden to show this is on the respondent Committees, since they seek to intrude
into the sphere of competence of the President in order to gather information which,
according to said respondents, would aid them in crafting legislation. Clearly, the
need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial
power to adjudicate actual controversies.

For sure, a factual basis for situations covered by bills is not critically needed before
legislatives bodies can come up with relevant legislation unlike in the adjudication of
cases by courts of law. Interestingly, during the Oral Argument before this Court, the
counsel for respondent Committees impliedly admitted that the Senate could still
come up with legislations even without petitioner answering the three (3) questions. In
other words, the information being elicited is not so critical after all.
Oversight Function of the Congress
Anent the function to curb graft and corruption, it must be stressed that respondent
Committees need for information in the exercise of this function is not as compelling
as in instances when the purpose of the inquiry is legislative in nature. This is
because curbing graft and corruption is merely an oversight function of Congress.44
And if this is the primary objective of respondent Committees in asking the three (3)
questions covered by privilege, it may even contradict their claim that their purpose is
legislative in nature and not oversight. In any event, whether or not investigating graft
and corruption is a legislative or oversight function of Congress, respondent
Committees investigation cannot transgress bounds set by the Constitution.
Office of the Ombudsman: The Office of the Ombudsman is the body properly
equipped by the Constitution and our laws to preliminarily determine whether or not
the allegations of anomaly are true and who are liable therefor.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees contend that their Rules of Procedure Governing Inquiries in
Aid of Legislation (the Rules) are beyond the reach of this Court. While it is true that
this Court must refrain from reviewing the internal processes of Congress, as a coequal branch of government, however, when a constitutional requirement exists, the
Court has the duty to look into Congress compliance therewith. We cannot turn a
blind eye to possible violations of the Constitution simply out of courtesy.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of person appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)
We do not believe that respondent Committees have the discretion to set aside their
rules anytime they wish. This is especially true here where what is involved is the
contempt power. It must be stressed that the Rules are not promulgated for their
benefit. More than anybody else, it is the witness who has the highest stake in the
proper observance of the Rules.
Congress as a continuing body
On the nature of the Senate as a continuing body, this Court sees fit to issue a
clarification. Certainly, there is no debate that the Senate as an institution is
continuing, as it is not dissolved as an entity with each national election or change in
the composition of its members. However, in the conduct of its day-to-day business

M.B. Fellone

the Senate of each Congress acts separately and independently of the Senate of the
Congress before it.
Motion for Reconsideration Denied.
__________
NOTES:
Quintessential is defined as the most perfect embodiment of something, the
concentrated essence of substance.24
non-delegable means that a power or duty cannot be delegated to another or, even
if delegated, the responsibility remains with the obligor.
Restrictions on the right to information: (1) national security matters, (2) trade secrets
and banking transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and diplomatic
matters, as well as information on inter-government exchanges prior to the conclusion
of treaties and executive agreements. It was further held that even where there is no
need to protect such state secrets, they must be examined in strict confidence and
given scrupulous protection.
IV. Power to Punish a Person Under Investigation
Arnault v. Nazareno 87 PHIL. 25 [1950] (subject of inquiry)
I.
THE FACTS
The Senate investigated the purchase by the government of two parcels of land,
known as Buenavista and Tambobong estates. An intriguing question that the
Senate sought to resolve was the apparent irregularity of the governments
payment to one Ernest Burt, a non-resident American citizen, of the total sum of
Php1.5 million for his alleged interest in the two estates that only amounted to
Php20,000.00, which he seemed to have forfeited anyway long before. The Senate
sought to determine who were responsible for and who benefited from the
transaction at the expense of the government.
Petitioner Jean Arnault, who acted as agent of Ernest Burt in the subject
transactions, was one of the witnesses summoned by the Senate to its hearings. In
the course of the investigation, the petitioner repeatedly refused to divulge the
name of the person to whom he gave the amount of Php440,000.00, which he
withdrew from the Php1.5 million proceeds pertaining to Ernest Burt.
Arnault was therefore cited in contempt by the Senate and was committed to the
custody of the Senate Sergeant-at-Arms for imprisonment until he answers the
questions. He thereafter filed a petition for habeas corpus directly with the Supreme
Court questioning the validity of his detention.
II.

THE ISSUE

1. Did the Senate have the power to punish the petitioner for contempt for
refusing to reveal the name of the person to whom he gave the Php440,000.00?

2. Did the Senate have the authority to commit petitioner for contempt for a term
beyond its period of legislative session?
3. May the petitioner rightfully invoke his right against self-incrimination?
III. THE RULING
[The Court DENIED the petition for habeas corpus filed by Arnault.]
1.
Yes, the Senate had the power to punish the petitioner for contempt for
refusing to reveal the name of the person to whom he gave the Php440,000.00.
Although there is no provision in the [1935] Constitution expressly investing either
House of Congress with power to make investigations and exact testimony to the
end that it may exercise its legislative functions as to be implied. In other words, the
power of inquiry with process to enforce it is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the
legislation is intended to effect or change; and where the legislative body does not
itself possess the requisite information which is not infrequently true recourse
must be had to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is
essential to obtain what is needed.
xxx

xxx

xxx

[W]e find that the question for the refusal to answer which the petitioner was held
in contempt by the Senate is pertinent to the matter under inquiry. In fact, this is not
and cannot be disputed. Senate Resolution No. 8, the validity of which is not
challenged by the petitioner, requires the Special Committee, among other things,
to determine the parties responsible for the Buenavista and Tambobong estates
deal, and it is obvious that the name of the person to whom the witness gave the
P440,000 involved in said deal is pertinent to that determination it is in fact the
very thing sought to be determined. The contention is not that the question is
impertinent to the subject of the inquiry but that it has no relation or materiality to
any proposed legislation. We have already indicated that it is not necessary for the
legislative body to show that every question propounded to a witness is material to
any proposed or possible legislation; what is required is that is that it be pertinent to
the matter under inquiry.
xxx

xxx

xxx

If the subject of investigation before the committee is within the range of legitimate
legislative inquiry and the proposed testimony of the witness called relates to that
subject, obedience, to its process may be enforced by the committee by
imprisonment.
2. YES, the Senate had the authority to commit petitioner for contempt for a term
beyond its period of legislative session.

M.B. Fellone

We find no sound reason to limit the power of the legislative body to punish for
contempt to the end of every session and not to the end of the last session
terminating the existence of that body. The very reason for the exercise of the
power to punish for contempt is to enable the legislative body to perform its
constitutional function without impediment or obstruction. Legislative functions may
be and in practice are performed during recess by duly constituted committees
charged with the duty of performing investigations or conducting hearing relative to
any proposed legislation. To deny to such committees the power of inquiry with
process to enforce it would be to defeat the very purpose for which that the power
is recognized in the legislative body as an essential and appropriate auxiliary to is
legislative function. It is but logical to say that the power of self-preservation is
coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the Senate,
which is a continuing body and which does not cease exist upon the periodical
dissolution of the Congress . . . There is no limit as to time to the Senates power to
punish for contempt in cases where that power may constitutionally be exerted as
in the present case.
3.
NO, the petitioner may NOT rightfully invoke his right against selfincrimination.
Since according to the witness himself the transaction was legal, and that he gave
the [P440,000.00] to a representative of Burt in compliance with the latters verbal
instruction, we find no basis upon which to sustain his claim that to reveal the name
of that person might incriminate him. There is no conflict of authorities on the
applicable rule, to wit:
Generally, the question whether testimony is privileged is for the determination of
the Court. At least, it is not enough for the witness to say that the answer will
incriminate him as he is not the sole judge of his liability. The danger of selfincrimination must appear reasonable and real to the court, from all the
circumstances, and from the whole case, as well as from his general conception of
the relations of the witness. Upon the facts thus developed, it is the province of the
court to determine whether a direct answer to a question may criminate or not. . .
The fact that the testimony of a witness may tend to show that he has violated the
law is not sufficient to entitle him to claim the protection of the constitutional
provision against self-incrimination, unless he is at the same time liable to
prosecution and punishment for such violation. The witness cannot assert his
privilege by reason of some fanciful excuse, for protection against an imaginary
danger, or to secure immunity to a third person.
It is the province of the trial judge to determine from all the facts and
circumstances of the case whether the witness is justified in refusing to answer. A
witness is not relieved from answering merely on his own declaration that an
answer might incriminate him, but rather it is for the trial judge to decide that
question.

M.B. Fellone